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Court of AppealAllowedNot stated in the judgment· [2025] KECA 359 (KLR)

The Registered Trustees Catholic Archdiocese of Nyeri v Tarcisio Nyaga & 5 Others (suing On Their Behalf and As Officials, On Behalf of Mathari Villagers Self Help Project’s Membership)

Court of Appeal of Kenya
28 February 2025
777 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an entire appeal because the appellant never served the notice of appeal — procedural service rules are jurisdictional, not optional.

What this practically means

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Executive summary

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This is a decision of the Court of Appeal at Nyeri (S. ole Kantai, J. Lesiit and Ali-Aroni, JJAA) delivered on 28th February 2025 on a motion under rules 77, 79, 84 and 85 of the Court of Appeal Rules by Tarcisio Nyaga and five others, seeking to strike out a notice of appeal dated 24th November 2021 and a record of appeal filed on 18th March 2024. The appeal lay against a ruling of Olola, J of the Environment and Land Court at Nyeri dated 18th November 2021. The applicants contended that the notice of appeal was never served on them as required by rule 79, that no request for proceedings was filed, paid for or served, and that the record of appeal was filed out of time without leave. The respondent's counsel admitted inadvertent failure to serve the notice of appeal, invoking Articles 48 and 50(1) of the Constitution and arguing that a mistake of counsel should not be visited on the client. The court held that rules 77 and 79 are couched in mandatory terms; the admitted failure to serve the notice of appeal rendered it incompetent, and since the notice of appeal is the instrument conferring jurisdiction on the court, the record of appeal was likewise incompetent. Relying on the Supreme Court's decisions in Raila Odinga v IEBC and Law Society of Kenya v Centre for Human Rights & Democracy, the court held that Article 159(2)(d) is not a panacea for procedural shortfalls, especially jurisdictional prerequisites. The notice of appeal and record of appeal were struck out with costs to the applicants. No valid or competent appeal remains before the Court.

Key legal issues

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01

Competence of the notice of appeal where service on affected parties was not effected under rule 79

Holding

The notice of appeal was incompetent because the respondent admitted it was never served on the applicant as required by rule 79, and the respondent did not avail itself of other processes in the rules to remedy the default.

Reasoning

Rule 79 requires a party, in mandatory terms, to serve copies of the notice of appeal on all persons directly affected before or within seven days of giving notice to the registrar. The respondent admitted non-service and gave only explanations for the failure without invoking the rules' remedial procedures. Since the notice of appeal is the instrument giving the court jurisdiction over an appeal, its incompetency infects the record of appeal, which must likewise be struck out.

p. 2
02

Whether Article 159(2)(d) cures procedural defaults in filing and serving a notice of appeal

Holding

No; Article 159(2)(d) does not oust the obligation to comply with procedural imperatives and is not a panacea for procedural shortfalls, especially jurisdictional prerequisites.

Reasoning

Relying on the Supreme Court's pronouncements in Raila Odinga v IEBC and Law Society of Kenya v Centre for Human Rights & Democracy, the court held that the override clause cannot be used to excuse non-compliance with mandatory procedural steps. Where the procedural step is a jurisdictional prerequisite, Article 159 offers no remedy. Mistake of counsel and prejudice arguments could not salvage an incompetent notice of appeal.

p. 2

Legal principles established

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  • Failure to serve notice of appeal as required by rule 79 renders the notice of appeal incompetent, and being the instrument that confers jurisdiction, renders the record of appeal incompetent.
  • Article 159(2)(d) of the Constitution does not excuse non-compliance with mandatory procedural requirements, particularly where the procedural step is a jurisdictional prerequisite.

Court orders

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  1. 1.The Notice of Appeal dated 24th November 2021 is struck out
  2. 2.The record of appeal filed on 18th March 2024 is struck out
  3. 3.Costs of the application to the applicant
On appeal from
Environment and Land Court at Nyeri
Jurisdiction invoked
Appeal against a ruling of the Environment and Land Court; application brought under rules 77, 79, 84 and 85 of the Court of Appeal Rules. No specific constitutional or statutory provision invoking the court's appellate jurisdiction is stated.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "The Registered Trustees Catholic Archdiocese of Nyeri v Tarcisio Nyaga & 5 Others (suing On Their Behalf and As Officials, On Behalf of Mathari Villagers Self Help Project’s Membership)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/359/eng@2025-02-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.